Protest challenging the agency’s interpretation of various solicitation requirements is denied, where the DFARS limits the government’s rights to detailed manufacturing or process data, but does not preclude the government from contracting for the delivery of this data or receiving this data with lesser rights. GAO found other challenges to the solicitation terms untimely, where the government had already signaled its interpretation of the RFP language during a Q&A prior to the deadline for proposals, and found other protest grounds premature, because they were filed following discussions but prior to award, and therefore only speculated at the outcome of the agency’s evaluation.

Sikorsky Aircraft Corporation protested the Air Force’s interpretation of the terms of its request for proposals for a helicopter to replace the UH-1N helicopter. Sikorsky objected to a number of positions taken by the agency during discussions and alleged the agency is treating offerors unequally.

First, Sikorsky argued that a clause in the RFP would require offerors to deliver source code and relinquish rights in excess of what is permitted by regulation. The protester noted that DFARS § 227.7203-1(c) says that offerors “shall not be required, either as a condition of being responsive to a solicitation or as a condition for award, to sell or otherwise relinquish to the Government any rights in computer software developed exclusively at private expense,” except for certain identified exceptions.

However, the RFP stated that for operation, maintenance, installation, and training (OMIT) software data (other than commercial software), the agency was willing to accept government purpose rights. Read in context, the protester argued this language implied that the government is unwilling to accept less than government-purpose rights in noncommercial computer software regardless of funding source. According to Sikorsky, the DFARS provides that the government is only entitled to receive restricted rights in noncommercial software developed at private expense, but this language requires offerors to relinquish greater rights than those to which the government is entitled.

Sikorsky conceded that its argument was untimely because the alleged conflict between the RFP and the DFARS is plain on the face of the solicitation. However, the protester asked GAO to waive its timeliness rules under an exception for issues significant to the procurement community. Sikorsky argued the issues are significant, in part, because the special contract clauses included in this RFP are clearly contrary to regulation, and similar special contract clauses have been included in multiple previous Air Force procurements over the last several months.

GAO declined to waive its timeliness rules to consider this argument. During the course of the protest, the agency advised GAO and offerors that it did not read the RFP language as requiring the provision of government-purpose rights in either noncommercial computer software developed at private expense or in technical data that constitutes DMPD developed at private expense. The agency also advised offerors that they could revise their proposals if necessary to respond to the clarification. GAO found this clarification rendered Sikorsky’s protest moot, and dismissed these grounds.

Sikorsky also challenged the agency’s interpretation of other language in the RFP and the agency’s evaluation. As an initial matter, GAO noted the uniqueness of Sikorsky’s arguments. Sikorsky argued that its challenge to an additional ambiguiy in the RFP was timely because it was not evident until the agency issued is evaluation notices. Further, the ambiguity was made more acute when the agency reaffirmed its position in responding to Sikorsky’s agency-level protest.

On the other hand, GAO noted that protests arguing that an agency evaluated proposals in a manner inconsistent with the RFP are usually filed after the agency makes it award decision or following a debriefing. GAO typically dismisses protests as speculative if they merely allege an agency may evaluate proposals improperly. While challenges to the terms of a solicitation should be resolved as early as possible in the process, the debriefing exception to GAO’s timeliness rules are meant to preclude defensive protests filed before the agency has taken final action and before actual knowledge that a basis for protest exists.

In this matter, Sikorsky identified an ambiguity during discussions, which required it to file a protest within 10 days, or prior to the next closing date for proposals. However, it also alleged unequal treatment, grounds which GAO generally considers premature when filed before an award decision. Considering each ground separately, GAO found some were untimely, some were timely, and others were premature.

Sikorsky argued that the agency’s interpretation of the solicitation potentially required the delivery of source code and detailed manufacturing or process data, which contradicted the language in the RFP. The protester argued that it reasonably read certain exclusions of DMPD as entirely excluding delivery of DMPD and, by extension, entirely excluding delivery of source code, and that it learned of the agency’s contrary readings for the first time during discussions. Specifically, Sikorsky explained that the agency indicated in discussions that the RFP may require the delivery of both technical data that constitutes DMPD and of source code, which the protester contends is impermissible. The agency affirmed this view in its response to Sikorsky’s agency-level protest.

First, GAO found this protest ground was not speculative or premature, because the agency effectively announced how it intends to evaluate proposals. On the merits, Sikorsky argued that the DFARS clause granting unlimited rights in technical data necessary for OMIT excludes DMPD from that grant of rights. Further, the protester observed that the RFP requires an offeror to provide certain technical data and computer software necessary for OMIT at the lowest practicable segregable level that does not require DMPD. According to Sikorsky, this suggests that DMPD should not be provided for both technical data and computer software necessary for OMIT. The protester argued that the equivalent to DMPD for computer software would be source code.

GAO concluded that Sikorsky’s interpretation of the solicitation was not reasonable. While Sikorsky correctly argued that the DFARS section excepts DMPD from a more general grant of unlimited rights in data necessary for OMIT, GAO noted that the rights to and delivery of items are legally distinct concepts. GAO found that the DFARS provision addresses the rights that the government be entitled to in delivered DPMD, but has no bearing on whether the government may contract for delivery of DMPD. In other words, the DFARS does not give the government unlimited rights to DMPD but does not preclude the government from contracting for it. In fact, the relevant DFARS provisions specifically contemplate that the government may sometimes receive DMPD with lesser rights.

GAO agreed that the RFP provided that OMIT data for certain specific areas should be delivered in a way which excludes DMPD, but noted that OMIT data is not limited to those specific areas. Therefore, the RFP did not categorically exclude delivery of DMPD from the technical data package.

GAO also found Sikorsky’s interpretation of the RFP’s requirements for the delivery of source code to be unreasonable. The relevant clause required delivery of certain “OMIT Data” which was defined to include both “technical data” and “computer software.” While computer software is not expressly defined in the solicitation, the clause incorporated the DFARS definition of computer software, which specifically includes “source code.” Therefore, a requirement to potentially deliver source code necessary for OMIT is plain on the face of the solicitation. GAO found that Sikorsky’s argument rested on the erroneous premise that the RFP treats computer software as though it were technical data, when in fact it distinguished between the two categories. The clause incorporated the DFARS definitions of technical data and computer software, which are mutually exclusive. Therefore, the mere inclusion of computer software alongside technical data in the defined category “OMIT Data” cannot be reasonably read as a redefinition of technical data to include computer software.

Next, Sikorsky argued that the agency’s interpretation of a statement of work task concerning the baseline technical data package to be provided under the contract, rendered it impossible for offerors to determine which contract data requirements list items will include OMIT or other than OMIT data, preventing offerors from competing on a common basis. According to Sikorsky, it reasonably interpreted the SOW task to mean that OMIT data should be provided under CDRL A136 (concerning product drawings or models and associated lists), while non-OMIT data, including data necessary for re-procurement, should be provided under CDRL A097 (concerning the technical data package generally). However, during discussions, the agency indicated that the RFP made no distinction between OMIT data and non-OMIT data at the CDRL level, and that this reading is not consistent with the RFP. The agency affirmed this view in its response to Sikorsky’s agency-level protest.

Sikorsky argued that because the SOW provision required offerors to furnish data necessary for re-procurement and data necessary for depot maintenance in two separate sentences, and also references two separate CDRLs, that a division of the two types of information at the CDRL level is a natural reading of the SOW provision. Sikorsky argued that the agency’s contrary reading—that the RFP does not distinguish between OMIT data and non-OMIT data at the CDRL level—is confusing and contrary to the RFP because it provides offerors with no guidance as to what should be provided in response to the two CDRLs.

However, GAO found this interpretation unreasonable. While the SOW paragraph separately required information necessary for re-procurement and information needed for maintenance, the referenced CDRLs were not clearly distinguished along those lines, nor did they, by their own terms, distinguish between OMIT and other than OMIT data. For example, GAO noted that CDRL A136 appeared to include requirements for data necessary for both maintenance and re-procurement. Accordingly, GAO denied these protest grounds.

Next, Sikorsky argued that the agency improperly applied a clause governing the government’s license rights in commercial computer software “to be” obtained on behalf of or transferred to the government, to software licenses already in the government’s possession. According to Sikorsky, it became clear during discussions that the agency unreasonably read the clause as applying to commercial computer licenses already in the government’s possession. Instead, the protester argued the clause applies only to licenses to be obtained on behalf of or transferred to the government under the contract, and therefore cannot be read to apply to licenses already in the government’s possession. However, GAO found this the argument was untimely, as the agency advised offerors of its view of this clause during a question and answer period.

Next, Sikorsky argued that the agency erred in rejecting its proposed attachments identifying a list of configuration items and depot-level repairables because the solicitation contemplated finalizing the lists of such items post-award. Sikorsky argued that the RFP did not prohibit the furnishing of such attachments, and that the agency is insisting on an unbounded view of what these items might comprise, and therefore is imposing an impossible standard on offerors for the first time in discussions. Alternatively, Sikorsky argued it did not claim in its proposal that additional items could not be identified during performance, and therefore did not intend for the attachments to be viewed as taking exception to the terms of the solicitation.

In response, the agency explained that the solicitation did not request or require the submission of such a list, and that certain provisions of the solicitation contemplated the identification of configuration items and depot-level repairables after award. Additionally, the agency noted in its ENs that the associated CDRLs themselves included timetables for finalizing the relevant lists of configuration items and depot-level repairables. The agency interpreted the attachments as an attempt on Sikorsky’s part to limit the enforceability of the SOW provision.

GAO found that, at best, this protest ground was a premature challenge to the evaluation. GAO found that Sikorsky’s contention that the RFP did not forbid the furnishing of such attachments is not incompatible with the agency’s view that the RFP did not require that an offeror provide them. Sikorsky did not argue that the agency could not identify additional configuration items or depot-level repairables post-award, and acknowledged that it did not intend the lists to be definitive or to take exception to the solicitation. Because the documents may simply represent information about Sikorsky’s technical approach, GAO found this argument, essentially, a premature challenge to the results of the technical evaluation.

Finally, Sikorsky argued that, because another offeror has offered a Sikorsky-manufactured aircraft but has not approached Sikorsky to secure necessary intellectual property licenses, the agency is treating offerors unequally or conducting unequal discussions. GAO found this argument premature, even assuming Sikorsky correctly characterized the contents of a competitor’s proposal. If Sikorsky is excluded from the competitive range or not selected for award, it may raise whatever evaluation errors it deems appropriate, including unequal discussions or unequal treatment, at that time.

Sikorsky Aircraft Corporation is represented by Marcia G. Madsen, David F. Dowd, Luke Levasseur, and Roger Abbott of Mayer Brown LLP; and by Maryann P. Surrick, and Heather A. Bloom, Lockheed Martin Corporation. The government is represented by Erika L. Whelan Retta, Alexis J. Bernstein, Michelle D. Coleman, Aaron Tucker, Michael D. Carson, Briana L. White, and Major George M. Ebert, Department of the Air Force. GAO attorneys Michael Willems and Edward Goldstein participated in the preparation of the decision.